## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2916

___________ Verle E. Olson, also known as * Tony Olson, * * Appellant, * * v. * * Harold Clarke; Ben Nelson; * Appeal from the United States John Dahm; John Doe; J. Hansen, * District Court for the P.A.; Carolyn Greunke; Judy * District of Nebraska. Rimel; Department of * Corrections, of Nebraska; Dr. * (UNPUBLISHED) Osborne; Lincoln General * Hospital, * * Appellees. *

___________ Submitted: March 18, 1997 Filed: May 5, 1997

___________ Before HANSEN, MORRIS SHEPPARDARNOLD, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Verle E. Olson appeals from the district court's order , dismissing as frivolous claims against certain defendants an d dism issing sua sponte under Federal Rule of Civil Procedur e 12(b)(6) claims against other defendants in this 42 U.S.C. § 1983 action alleging Eighth Amendment violations. We affirm in p art and reverse and remand in part.

Olson, a Nebraska prisoner, alleged in his November 199 5 complaint filed in forma paupe ris that he had had a hydrocelectomyThe Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 1 104-134, § 804(a)(5), 110 Stat. 1321 (1996) (to be codified at 28 U.S.C. § 1915(e)(2)), now auth orizes the district court to dismiss a complain t filed in forma pauperis "at any time if the cour t -2- at the Lincoln General Hospita l to remove a hydrocele (an abnormal collectionof fluid) on his testicle, and that he subsequentl y complained of a painful lump at the surgical site, but priso n medical staff delayed and denied him medical treatment. Olso n named as defendants Governor B en Nelson, Department of Corrections Director Harold Clarke, Omaha Correctional Center (OCC) Ward en John Dahm, OCC medical director Osborne, nurses Judy Rimel and Carolyn Greunke, physician assistant Jeff Hansen, Lincoln General Ho spital, and th e Department of Corrections. He sought damages an d injunctive relief. In an amen ded complaint, Olson attached copies of inmate interview requests responded to by Hansen and Rimel , whichdocumented his unsuccessful attempts to be examined by a urolog ist, the delay in his receipt of treatment, and hi s complaints of continuing pain. He additionally alleged that Hansen examined him but failed to provide or delayed treatment, and that while Rimel scheduled appointments for Olson to be examined by a physician, his appointments were canceled, and several month s passed before he finally obtained an examination by a Dr. Cherry, who also failed to provide treatment.

With out ordering service on defendants, the district cour t dismis sed as frivolous Olson's claims against Governor Nelson , Dire ctor Clarke, and Lincoln General Hospital, concluding Olso n fai led to allege how Nelson and Clarke were personally involved , and failed to allege facts establishing that the hospital was a state actor or conspired with state actors to violate hi s constitutional rights. The district court dismissed Olson's action
as to the remaining defendants pursuant to Rule 12(b)(6) fo r failure to state a claim. The district court acknowledged that 1determines that . . . the action . . . fails to state a claim o n

which relief may be granted." -3- Olson's injuries were serious, but suggested that Olson had failed to allege sufficient facts to establish deliberate indifference by any d efendant. The court noted that Olson had been examined b y nurses and doctors after his surgery and that a disagreement with the course or efficacy of trea tment did not rise to the level of a
cons titutional claim, nor did allegations of negligence state a claim under section 1983. We review de novo the dismissal of a case for failure to sta te
a claim; a complaint should not be dismissed unless it appear s beyond a doubt that the plaint iff cannot prove any set of facts in support of the claim that would entitle the plaintiff to relief

. See Di cken v. Ashcroft , 972 F.2d 231, 233 (8th Cir. 1992). T o state a claim for an Eighth Am endment violation, Olson must allege fac ts sufficient to support his claim that prison officials wer e deliberately indifferent to his serious medical needs. See Estelle v. Gamble , 429 U.S. 97, 104 (1976). We conclude that the district court, which must assume Olson 's allegations are true, erred indismissing claims against physician assistant Hansen and nurse Rimel for failure to state a claim

. Olson's allegations as to thes e defendants, which include requests for additional treatment following the discovery of a lump , continued pain due to lack of treatment, a delay in treatment, and
a denial of a request for a referral to a specialist, ar e sufficient to satisfy the deliberate indifference standard. See, e.g. , Ellis v. Butler , 890 F.2d 1001, 1004 (8th Cir. 1989) (pe r curiam); Mandel v. Doe , 888 F.2d 783, 788 (11th Cir. 1989). W e conclude that the district court could not determine, withou t improper speculation, that any delay in addressing Olson's c oncerns
was n ot due to deliberate indifference. See Ellis , 890 F.2d a t 100 3-04. Further, although Olson was examined by a physicia n assistant and, eventually, by a prison physician, he could be-4-

entitled to relief if he can prove that the "course of treatment,
or lack thereof, so deviated from professional standards that i t amounted to deliberate indifference." Smith v. Jenkins , 919 F.2d 90, 93 (8th Cir. 1990).

We co nclude, however, that the district court properl y dis missed as frivolous the claims against Clarke and Nelson, se e McDowell v. Jones , 990 F.2d 43 3, 435 (8th Cir. 1993) (holding that supervisor liability under § 1983 requires proof that th e supervisor personally particip ated in or had direct responsibility for the alleged violations), a nd the Lincoln General Hospital, see Gentry v. City of Lee's Summit , 10 F.3d 1340, 1342 (8th Cir. 1993) (holding that § 1983 liability requires a defendant to have acted under color of state law). We also conclude the claims agai nst the Department of Corrections were properly dismissed. See Monell v. Department of Social Servs. , 436 U.S. 658, 694-95 (1978) (holding that municipal liability under § 1983 requires proof of an o fficial custom , policy, or practice that caused the alleged violations)

. Inaddition, Olson failed to allege any facts supporting a clai m against nurse Greunke, Dr. Osborne, or Warden Dahm. We leave for the district court to determine whether Olson may amend hi s complaint to add Dr. Cherry as a defendant.
Accordingly, we affirm in part and reverse and remand in part for further proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.